In recent years, several families of victims of high-profile crimes have expressed their opinions on the kind of punishment they think should be meted out to the offenders. For instance, after the brutal rape in December 2012 of a young Delhi woman who later died from injuries sustained during the assault, the parents of the victim demanded the death penalty for all the convicts, including a minor among them. Under Indian law, minors are not given the death penalty: they are treated as juveniles in conflict with law, rather than criminals. The courts, and the Parliament, rightly ignored this demand.

Conversely, there have also been cases where public opinion has tried to persuade families to pardon offenders whose criminal acts caused the injury or death of a relative. The most high-profile case in this category is the one involving the assassins of former Prime Minister Rajiv Gandhi in May 1991.

After a protracted legal battle that went up to the Supreme Court, the death penalty to four convicts – Shantan, Murugan, Perarivalan and Nalini – was confirmed in 1999. They were convicted for actively participating and executing the conspiracy hatched by the Liberation Tigers of Tamil Eelam to kill Rajiv Gandhi.

However, the execution was kept on hold as the convicts made a mercy petition. In 2000, the Tamil Nadu government led by then Chief Minister M Karunanidhi acted favourably in the mercy plea moved by Nalini, giving consideration to the fact that she was a woman and a mother. The governor accepted the Cabinet decision in April 2000 and commuted her sentence. The mercy pleas of the other three, however, were later rejected by the governor. They then moved the office of the President, which took 11 years to dispose of the petitions. The convicts then approached the courts, claiming that the agonising wait had nullified the very process of a mercy petition and that living in anticipation of death had dehumanised their existence, which was akin to death itself.

In 2014, the Supreme Court accepted the view that the Centre could not sit on a mercy petition forever and commuted their sentences to life imprisonment.

Later that year, former Tamil Nadu Chief Minister Jayalalithaa exercised the state government’s remission powers and decided to release all seven assassins. This was challenged by the Centre on the grounds that it had not been consulted. The inquiry into the crime had been conducted by the Central Bureau of Investigation and therefore any decision to release the convicts could be done only with the Centre’s concurrence, it argued. The Supreme Court later confirmed this.

However, since 2014, the demand for the convicts to be released has gained ground, fueled by statements from those involved in the investigation that some statements attached as evidence during the trial had been edited and not produced in full.

Demand for remission

On October 18, former Supreme Court judge KT Thomas, who was part of the bench that upheld the death penalty to the four assassins and life imprisonment to three others, wrote to Congress president Sonia Gandhi. In the letter, he requested her and her children to write to the President Ramnath Kovind “conveying her willingness to grant remission” to the assassins, given that they have already been in jail for 26 years.

Thomas cited the Mahatma Gandhi assassination case, in which remission was granted to several convicts, including Gopal Godse, the brother of the assassin Nathuram Godse, after they completed 14 years in prison.

Speaking to the Indian Express, the former judge said revelations after the his verdict in 1999 exposed serious flaws in the case.

The Rajiv Gandhi case was quite different from Mahatma Gandhi’s, in the sense that the main two accused were never arrested. Velupillai Prabhakaran, the leader of the LTTE, and Pottu Amman, the intelligence wing head of the organisation, remained at large until their deaths in 2009. Those convicted were participants in the conspiracy, but not its progenitors.

Further, the case of Perarivalan has been forcefully argued by Tamil nationalists. His part in the assassination was that he bought a battery that was used in making the bomb that eventually killed Rajiv Gandhi. Further, the cases were tried under the draconian Terrorist and Disruptive Activities (Prevention) Act, under which confession was accepted as evidence. Political leaders like Marumalarchi Dravida Munnetra Kazhagam leader Vaiko have maintained that the CBI cooked up statements. However, it is also true that Perarivalan was in Jaffna in 1990 and was charged of being present during later meetings in India when the plan to execute Rajiv Gandhi was made.

However, last month, one of the officers in the investigation, V Thiagarajan, made a startling statement that Perarivalan in his confession had denied knowing anything about the purpose for which the battery was bought. Thiagarajan said he excluded this part from his confession and kept only that part which established that Perarivalan bought the battery. He has now filed an affidavit in the Supreme Court to this effect in a petition moved by Perarivalan against his continued incarceration. Startlingly, the CBI has still not closed the inquiry into the larger conspiracy surrounding Rajiv Gandhi’s assassination.

The family’s view

Over the last few years, many in Tamil Nadu have gained the impression that the only roadblock for granting remission to the assassins was the sentiments of the Rajiv Gandhi family, which includes Rahul Gandhi and Priyanka Gandhi. If they agree, this point of view suggests, the Centre should have no problem in accepting Tamil Nadu’s proposal to release the seven convicts.

However, this position isn’t without its critics. The suicide bomber who killed Rajiv Gandhi also killed 17 others on that fateful evening in May 1991. If the Rajiv Gandhi family should be consulted, the families of the 17 others should also be given their say, these people maintain. Many of these families have vehemently opposed any mercy being shown to the seven convicts.

The debate raises the other question: if the victim’s family should determine the release of convicts, should their view be considered when deciding the quantum of sentence as well?

In the Indian criminal justice system, any crime is treated as a crime against the state. When a murder takes place, it is a crime because it violates sections of the penal laws and robs the right to life guaranteed by the Constitution. In all criminal cases, it is the state that is the prosecutor – not the victim or their family. Should this power of the state be subject to the sentiment of the individuals involved?

Lawyer and Dravida Munnetra Kazhagam spokesperson A Saravanan said the criminal justice process in the Rajiv Gandhi assassination case was completed in 1999. The trial took place and the sentence was given. What is taking place now is the exercise of certain special powers vested in the government, which is beyond the trial. Therefore, he said the view of the families could only be a moral intervention and not Constitutional. “The convicts have spent over quarter of a century in jail,” Saravanan reiterated.

Observers have also pointed out that the Rajiv Gandhi case was also political in nature, given that it was orchestrated by the LTTE, a group classified as a terrorist organisation. Given the national security implications, it is much more than a murder case.

Lawyer V Suresh said what the families think should not be the basis for making such crucial decisions. “The government should objectively see if releasing the convicts would lead to any ill effect,” he said. “If the state is convinced that they have reformed, that should be the basis,” he said.